Rape victims being forced to choose between justice and healthcare - Victims of Crime Commissioner

Rape victims in Northern Ireland are being forced to choose between healthcare and justice because of the requirement to hand over "excessive amounts" of personal data during trials, it has been claimed.

Northern Ireland's Commissioner Designate for Victims of Crime, Geraldine Hanna, raised concern over access being sought to counselling notes for sexual assault victims.

A recent report by the Information Commissioner (ICO) outlined a series of recommendations for police and prosecuting authorities to tighten the safeguards governing access to a victim's personal data.

But Ms Hanna said currently in Northern Ireland victims of sexual crime may be referred to counselling after their attack to help them process the trauma.

However, during the investigation or subsequent court case, the police, prosecution, or defence may seek access to their counselling records - which the victim may then be questioned about in court, she stated.

She has said she is "deeply concerned that this is putting some victims off accessing crucial therapeutic support and is causing those that do avail of support to censor what they say for fear of how it may be used against them"

Speaking at the beginning of Sexual Violence Week, Ms Hanna said she is engaging with the legal profession, victim support organisations, the Public Prosecution Service, the PSNI, and counselling organisations to explore proposals to restrict or exclude these counselling notes from criminal trials.

She said: "One of my key priorities is to strengthen the protection afforded to victim's personal data including the disclosure of counselling notes.

"It is crucial that victims of crime, especially victims of rape and sexual violence, feel safe and confident to report these crimes and that they can work confidentially with an appropriate health professional to process their trauma.

"However, I am deeply concerned that the disclosure of third-party counselling notes in rape and sexual assault trials is forcing victims to choose between accessing healthcare and accessing justice.

"The disclosure of excessive amounts of data and information, which can then be used in court by the defence, has the triple effect of retraumatising victims, making some victims reluctant to access crucial counselling services, or resulting in victims censoring their accounts of their experience to their counsellors in the knowledge that it may be used in court."

She added: "The criminal justice system has an obligation to support victims and to foster an environment which makes victims confident that their experiences will be dealt with sensitively.

"I am concerned that the disclosure of counselling notes does the opposite of this, however, and makes victims of serious sexual assault less likely to come forward.

"For crimes which are already underreported and have lower prosecution rates, this is even more concerning."

UK Information Commissioner John Edwards said: "We know from our investigations that the excessive collection of information from victims of rape and serious sexual assault leaves people feeling re-victimised by a system they expected to support them.

"The important work by Commissioner Designate Geraldine Hanna for Victims of Crime in Northern Ireland, alongside broader work across the UK, is vital to making progress to prevent victims feeling as though they are being treated as suspects."

In a statement, the PSNI's Superintendent Lindsay Fisher said: "The Police Service of Northern Ireland recognise the trauma experienced by those who are victims of sexual abuse and violence and the fear associated with reporting these offences to the Police. "We welcome the opportunity to work collaboratively with key partners, including Northern Ireland's Commissioner Designate for Victims of Crime, to ensure that we are best supporting victims of sexual offences and delivering effectively against the current Information Commissioner recommendations. "We continue to review and monitor our processes and rationale where we seek to access personal data in criminal justice investigations. Superintendent Fisher continued: "Police treat all allegations of sexual offences sensitively and with compassion and have specially trained detectives who ensure victims are listened to, safeguarded and supported from the moment they report. You don’t have to suffer in silence." Anyone who has experienced any form of sexual abuse or assault is asked to contact police on 101, or 999 in an emergency.

Ciaran McQuillan, head of the PPS Serious Crime Unit which deals with rape and other serious sexual offences, said: “All victims of a sexual offence should be able to feel confident that they can receive the therapeutic care they need, without giving up their right to privacy. “We in the PPS appreciate the deep and complex sensitivities around victims having their personal information accessed for the purpose of a criminal trial. As prosecutors, we have a duty to apply the law and to ensure the overarching obligation of a fair trial. Part of ensuring that fair trial is complying with our duty of disclosure. We will only ask police to seek material from third parties, such as a medical provider, when it is a reasonable line of enquiry having regard to the particular circumstances of the case, and will only disclose information to a defendant where it undermines the prosecution case or assists the defence. “We welcome the opportunity to contribute, alongside other criminal justice stakeholders, to the ongoing work of Commissioner Designate on this important issue. We wholeheartedly endorse her view that victims’ rights and needs should be appropriately safeguarded when engaging with the system. “I would stress that it is the view of the PPS that no victim should be deterred from seeking treatment or support because there is a case ongoing. Victims are entitled to avail of all the medical help they need. The PPS will handle any relevant materials sensitively and strictly in accordance with their legal obligations to both the victim and the defendant.”

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